The Supreme Court granted certiorari today in Hemphill v. New York (No. 20-637), to resolve the following question: “Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.”
The facts are straightforward. In 2006, someone fired a 9- millimeter handgun during a melee in the Bronx, killing a child in a passing car. When Hemphill was tried for the crime, he contended that the shooter was another man at the scene, Nicholas Morris. As part of that defense, Hemphill elicited testimony that the police had recovered a 9-millimeter cartridge on Morris’s nightstand hours after the shooting. The State then successfully moved to introduce a guilty plea from Morris in which he said he possessed a different gun—a .357 revolver—at the scene of the shooting. The New York courts rejected Hemphill’s claim that admitting Morris’s allocution without calling him to the stand violated Hemphill’s Sixth Amendment right to confront the witnesses against him. They held that Hemphill had “opened the door” to Morris’s otherwise constitutionally inadmissible testimony by implying that Morris possessed a 9 millimeter gun and used it during the shooting.
Will the Supreme Court agree? Or will they hold that the lower courts violated Hemphill’s rights under Crawford v. Washington, 541 U.S. 36 (2004)? Stay tuned.